guish the question before the jury, under the statute, from the familiar one at common law, where, by perhaps the majority of judges, it is held that, from a mere killing, or a mere intentional killing, the malice which constitutes murder is, prima facie, to be inferred. But where a statute, as in New York and some other of our states, goes further, and divides murder into two degrees, no court ever held that murder in the first degree is to be inferred from the killing alone; the utmost stretch of the presumption having been that it is murder in the second degree. This question could never arise in England, because murder in the first degree is there unknown; but in several of our states it has been agitated, the decisions are all one way, and there is no doubt upon it. The notable thing about this case, as a mere legal one, is, that many people, even among lawyers, thought, at the time, that the court had in some way been induced to bend the law in the interest of the crime of murder.

III. Tweed's Case.-As many hard things, now happily passed away, were at first said about the decision in Tweed's case, it would be gratifying could we find that it also accords with the general law, as administered in England and our other states. But it does not. Unquestionably it is law in New York, for it is the decision of the court of last resort. Nor do I even suggest that the tribunal erred therein. In other localities, where the common law prevails, to accept it would be to overturn what is fundamental and established in authority, and in principle is essential to the just administration of the criminal law.

This case is entitled People ex rel. William M. Tweed v. Liscomb; the latter being the warden of the prison in which Tweed was confined, and the proceeding being habeas corpus. It was decided in 1875.3 The facts were as follows:

A statute provided, that, "when any duty is or shall be enjoined by law upon any public officer, or upon any person. holding any public trust or employment, every wilful neglect

2 Bishop Crim. Proced. 2d ed. 3 618; Witt v. The State, 6 Coldw. 5; The State v. Holme, 54 Misso. 153, 161.

3 People v. Liscomb, 60 N. Y. 559.

to perform such duty" should be a misdemeanor, punishable by imprisonment not more than a year, and a fine not exceeding two hundred and fifty dollars. Tweed had been indicted for two hundred and twenty distinct and several neglects under this statute, in one indictment, in as many separate counts, and had been found guilty on two hundred and four of the counts. Upon twelve of the counts the court had sentenced him to twelve successive terms of imprisonment of one year each, together with fines of two hundred and fifty dollars on each, and, on other counts, to additional fines, amounting in all to twelve thousand five hundred dol lars. After the expiration of one year's imprisonment, and the payment of one fine of two hundred and fifty dollars, this writ of habeas corpus was brought, on the idea that the sentence upon one count exhausted the jurisdiction of the court, and the sentences on the other counts were void. It was denied, on the part of the People, that habeas corpus was the proper remedy, which, it was said, should have been a writ of error. That question I do not propose to discuss, but the other. The court held that the entire judgment subsequent to that on the first count was void, and the prisoner was entitled to his discharge.

The ground of the decision on this main issue was, that neither in felony nor in misdemeanor is it competent for a court to try a man for two or more separate offences, charged in one indictment, though in separate counts, and inflict on him a punishment greater than the law would permit on one of the counts. The only course to this end, even in the minor misdemeanors, is, it was held, for a separate indictment to be found for each offence, to be followed by a separate trial thereon.

And this course, it was deemed, is invariably essential for the protection of defendants. "The practice," said the learned judge, "of putting a man on trial for distinct offences at the same time is fraught with danger to the accused, and can never be done except at great risk of doing injustice. The law is tender of the rights of those accused of crime, to the extent of securing to them, by every means, a fair and

impartial trial by a jury of the country, and protecting them against a conviction under the forms of law, but without an observance of, and adherence to, all the forms and rules of law calculated to protect the innocent."4 Now, in this case, Tweed was, in law, innocent, and should be deemed so also in morals, until proved guilty. The humane course, therefore, was to find against him two hundred and twenty separate indictments, and permit him to fee counsel, and pay witnesses, and overcome the People's evidence against him two hundred and twenty times. How long a period must be occupied in doing this it is impossible to calculate with certainty, but a very low estimate would be ten years of continuous defence. Meanwhile an extra court-house must be built, and an extra judge commissioned. But this burden would be for the People; Tweed would have burden enough to bear of his own.

Contrary to this view, the general doctrine prevailing elsewhere is, that the justice of the law forbids the harassing of defendants with multitudes of suits, whether criminal or civil, where the matter can be properly condensed into one. Such a course, even as to civil claims justly due, will in some circumstances subject him who pursues it to indictment at the common law.5 There are limits within which causes of action may be divided and prosecuted in different suits, and limits beyond which the party will not be permitted to go in that direction. Some civil claims are so diverse in their nature that they can be enforced only in separate suits.

The forms of the criminal law differ from those of the civil department; yet, in the criminal, the general truth just stated prevails the same as in the civil, though with perhaps less protection against multitudes of prosecutions. If a grand jury should find many indictments for petty offences growing out of one series of facts, where the whole could be more conveniently embraced in separate counts of one indictment, doubtless it would be competent for the court to order the whole to be tried together. And it may be that the court 4 Page 581.

3 Commonwealth v. McCulloch, 15 Mass. 227.

might even be justified in refusing to try one of the indictments, or in quashing all, should the prosecuting power decline condensing the whole into one. This would furnish to the defendant a sort of protection against an interminable harassment. Or, on the other hand, should the prosecuting power in the first instance manifest its wish to try two distinct offences together by charging both in one indictment, in separate counts, then, should the defendant object to this, and the court be satisfied that it would work injustice to him, it could order separate trials on the separate counts; or it could quash a part of the counts; or, after the case was opened to the jury, it could require the prosecuting officer to elect on what count, or for what criminal transaction, he would proceed. In cases of felony the practice prevailing in most localities is, as a matter of course, to confine the prosecutor to evidence of a single criminal transaction, if the prisoner so requests; but in misdemeanors the court will exercise this power or not, according to the circumstances and demands of justice in the particular instance; yet neither in felony nor in misdemeanor is there any inexorable rule of law forbidding the joining of counts for separate felonies, or for separate misdemeanors, or for misdemeanor and felony, in one indictment. Each count is, in effect and in form, a distinct indictment; and an indictment in a half-dozen counts, and a half-dozen indictments in one count each, differ in little, if anything, except in this, that to the former there is only one caption, with one endorsement by the foreman of the grand jury, while to the latter there are six captions (if the indictments are certified to a higher court), with six endorsements. In neither case is the existence of one count or indictment pleadable in bar or in abatement of another.10 The consequence of which is, that, alike in felony and misdemeanor, in cases in which an election would be enforced if 6 Commonwealth v. Hills, 10 Cush. 530, 534.

7 1 Bishop Crim. Proced. 2d ed. ¿? 447, 455.

8 People v. Baker, Hill (N. Y.), 159; Reg. v. Fussell, 3 Cox C. C. 291; I Bishop Crim. Proced. 2d ed. & 454, et seq.

91 Bishop Crim. Proced. 2d ed. ¿? 457, 458.

ΤΟ

1 Bishop Crim. Law, 6th ed. 8 1014.

asked, and those in which it would not, if the jury convicts the prisoner for more offences than one, charged in separate counts, the finding and the record are nevertheless good on a motion in arrest of judgment or on a writ of error;" a fortiori, therefore, good on a proceeding by habeas corpus.

12

"14

Whatever may be said of felony, there is no proposition better established as general doctrine, or less embarrassed by dissenting views, than that, under proper circumstances, separate and disconnected misdemeanors may be charged in distinct counts in one indictment, and the defendant be convicted for the whole. The authorities to this proposition could be multiplied almost without end, and nothing could be found against it. And this doctrine appears to prevail as well in New York 13 as elsewhere. I do not understand the court, in Tweed's case, distinctly to deny this proposition, which they say is sustained by "a show of authority." But what they maintain, and what this case establishes as the law of New York, is, that, though there be such a conviction, no heavier judgment can be passed on the whole indictment than the law permits on one of the counts; and, if the court imposes the full legal penalty on one of the counts, any judgment it pronounces on the rest is void. This, I admit, is New York law; but it was never law anywhere else, and let us hope that it may not be hereafter. How could it be law elsewhere? Why, in any civilized community, should a court spend its time, merely to spread scandal, in convicting a man of an offence, if it had no power to punish him therefor? The end of the proof of crime, and the verdict of

" I Stark. Crim. Pl. 39; Rex v. Kingston, 8 East, 41; United States v. Stetson, 3 Woodb. & M. 164; The State v. Nelson, 14 Rich. 169; The State v. Brown, Winston, No. 2, 54; Henwood v. Commonwealth, 2 Smith (Pa.), 424; Ketchingman v. The State, 6 Wis. 426; The State v. Kibby, 7 Missa. 317; People v. Shotwell, 27 Cal. 394; together with many other authorities. 12 For example, 1 Bishop Crim. Proced. 2d ed. ?? 448, 452, and the cases there cited; The State v. Gummer, 22 Wis. 441; The State v. Tuller, 34 Conn. 280.

13 People v. Costello, 1 Denio, 83, 90; Kane v. People, 8 Wend. 203; People v. Rynders, 12 Wend. 425; People v. Gates, 13 Wend. 311; People v. Baker, 3 Hill (N. Y.), 159; Hodgman v. People, 4 Denio, 235.

14 Page 577.